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Atul Krishna Bose and ors. Vs. Zahed Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1941Cal102
AppellantAtul Krishna Bose and ors.
RespondentZahed Mondal and ors.
Cases ReferredShaw v. Foster
Excerpt:
- .....decree for proving the rent of the tenancy.3. the next question for decision is whether the rate of rent can be proved aliunde. it was argued by learned advocate for the appellant that rent at the rate claimed has been paid and that there are counterfoil receipts to prove this. he wished to prove the rate of rent by these receipts. in my opinion, section 91, evidence act, stands in the way of any other evidence being given of the rate of rent. the rate of rent is one of the terms of the lease. section 91 says that when the terms of a contract or any grant or other disposition of property are reduced to the form of a document no evidence shall be given of the proof of such terms grant or other disposition except the document itself. the terms of section 91 are quite explicit in.....
Judgment:

Sen, J.

1. This appeal arises out of a suit for rent, the plaintiffs being the appellants. Their case is that they purchased the superior interest at a rent sale and annulled all incumbrances by a notice under S.167, Bengal Tenancy Act. They then brought a suit being Title Suit No. 136 of 1923 for khas possession against the defendants. The suit was decreed on compromise. By the terms of the compromise, a lease was granted to the defendants at a rental of Rupees 16 per annum. The defendants have fallen into arrear and the plaintiffs accordingly sue for recovery of rent. The defence taken is that the original rent of the tenancy was Rs. 6-6-0 that the compromise decree was obtained by fraud and that the enhancement of rent from Rs. 6-6-0 to Rs. 16 was illegal by reason of the terms of Section 29, Bengal Tenancy Act. The Munsif negatived this defence and gave the plaintiffs a decree. The defendants appealed. The learned District Judge has found that no fraud was practised but he held that the lease was inadmissible in evidence as it was not registered and that therefore the plaintiffs could not claim rent on the basis of the lease. He held also that if the present lease be treated as the continuation of the old one then the enhancement of the rent from Rs. 6-6-0 to Rs. 16 was illegal. He allowed the plaintiffs rent at the admitted rate of Rs. 6-6-0 per annum. The plaintiffs now appeal. It is accepted that the compromise decree was not obtained by fraud and that the rent originally paid by the defendants was Rs. 6-6-0. The decree is not registered. The first question for determination is whether it is a document which must be registered.

2. The contention of the appellant is that decree does not create a lease but that it is a document which merely recognizes or declares the existence of the old tenancy and is therefore not compulsorily registrable under Section 19, Registration Act. I have carefully considered the document and have no hesitation in holding that by the compromise decree a new lease is created. The old tenancy was extinguished by the notice under Section 167, Ben. Ten. Act, annulling encumbrances. The plaintiffs sued the defendant after annulling his tenancy on the footing that he was a trespasser. The suit [was compromised by the defendants taking 'a fresh lease. The words used are 'Jama bandobasta Korealoyeelam ' (I hereby take a lease). The compromise decree is not the recognition of an old lease but it is a new lease. Now, S.17 (1) (d), Registration Act, says that a lease from year to year or for any time exceeding one year or reserving a yearly rental must be registered. The com-promise decree is a document of this description and it is compulsorily registrable. It is true that Section 17 (2) (vi) exempts a decree or order of Court from registration but the exemption does not extend to decrees embodying leases. This is perfectly clear from the wording of Sub-section (2) which expressly limits the operation of the exemption therein contained to documents dealt with in Clauses (b) land (c) of sub-s.(1). Sub-clause (d) of Sub-section (1) which deals with leases is excluded from the operation of Sub-section (2). In this connexion I would refer to the case in Nazar Ali v. Indra Kumar : AIR1929Cal462 . Now this decree being compulsorily registrable under Section 17, Registration Act, and not having been registered, it cannot affect the immovable property comprised therein or be received as evidence of any transaction affecting such property. This is the effect of Section 49, Registration Act. The plaintiffs cannot therefore rely upon this compromise decree for proving the rent of the tenancy.

3. The next question for decision is whether the rate of rent can be proved aliunde. It was argued by learned advocate for the appellant that rent at the rate claimed has been paid and that there are counterfoil receipts to prove this. He wished to prove the rate of rent by these receipts. In my opinion, Section 91, Evidence Act, stands in the way of any other evidence being given of the rate of rent. The rate of rent is one of the terms of the lease. Section 91 says that when the terms of a contract or any grant or other disposition of property are reduced to the form of a document no evidence shall be given of the proof of such terms grant or other disposition except the document itself. The terms of Section 91 are quite explicit in their prohibition of the proof of the terms of the lease aliunde, and I hold that no other evidence could have been given to prove the rate of rent in this suit which is based on an unregistered lease except the lease itself and that Section 49, Registration Act, prevents the document being put in evidence. The result is that the plaintiffs cannot prove the rate of rent. To hold other-wise would be to render nugatory the provisions of the Registration Act and of S.91, Evidence Act. A similar question arose and was considered by the Judicial Committee of the Privy Council in Subramanian v. Lutchman ('23) 10 AIR 1923 PC 50. The case related to a mortgage by deposit of title deeds. There was a writing accompanying the deposit. Their Lordships held that the writing should have been registered as it constituted the bargain between the parties and was not merely a memorandum of a contract already completed. The writing was not registered and was held to be inadmissible in evidence. It was contended that oral evidence may be given of the terms of the mortgage. The contention was repelled by their Lordships who laid down that as the writing could not be proved no oral evidence of the terms of the contract could be given. In doing so they quoted the words of Couch C. J. in Kedarnath Dutt v. Sham Lall Khettry ('73) 11 Beng LR 405 which were as follows:

The rule with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement.

4. They also referred with approval to the words of Lord Cairns in Shaw v. Foster (1872) 5 H L C 321 and said:

In the words of Lord Cairns in the leading case of Shaw v. Foster (1872) 5 H L C 321 although it is a well established rule of equity that a deposit of a document of title without more, without writing or without word of mouth, will create in equity a charge upon the property referred to, I apprehend that, that general rule will not apply when you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of written document, and any implication that might be raised, supposing there was no document, is put out of the case and reduced to silence by the documents by which alone you must be governed.

5. I must hold therefore that the plaintiffs cannot give oral testimony of the rate of rent fixed by the unregistered lease. Learned advocate for the appellants next relied upon the terms of Section 51, Bengal Tenancy Act, which are as follows:

If a question arises as to the amount of a tenant's rent or the conditions under which he holds in any agricultural year, he shall be presumed, until the contrary is shown, to hold at the same rent and under the same conditions as in the last preceding agricultural year.

6. He argued that he was able to prove the rent paid in the previous years and that he was therefore entitled to the presumption that this was the rent payable. All I need say about this argument is that there cannot be scope for any presumption of the terms of a lease in a case where there is a written lease setting forth the terms. The decree of the lower appellate Court giving the plaintiffs rent at the rate admitted by the defendants must therefore be upheld. It was contended by the respondents that even if the lease could be given in evidence it would be inoperative so far as the increase of the rent is concerned inasmuch as it offends against the provisions of Section 29, Bengal Tenancy Act. In view of my decision that the lease cannot be proved and that no oral or other evidence can be given of the rate of rent, it is unnecessary to decide this question. The appeal is dismissed with costs. Leave to appeal under Section 15 of the Letters Patent is refused.


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